4.

PROCEDURE TO TERMINATE EMPLOYMENT

4.1. TWIN REQUIREMENTS OF NOTICE AND HEARING

228. CENTURY TEXTILE MILLS VS. NLRC

ISSUE RULING

Whether or not private The private respondent Calangi has been dismissed without just cause from his employment by petitioner Corporation.
respondent Calangi was
illegally dismissed from Public respondent Commission found that private respondent Calangi was effectively denied his right to due process in that, prior to his preventive suspension and the
his job as machine termination of his services, he had not been given the opportunity either to affirm or refute the charges proferred against him by petitioner Corporation. Petitioners allege
operator. however that private respondent Calangi had been previously informed of and given the chance to answer the company's accusations against him, but that he had "kept silent"
all the while.

Petitioners contend that the above Memorandum "clearly shows that prior investigation and consultation with the union was made," and "will therefore negate the theory of
respondents that respondent Calangi was not afforded the chance to present his side for the memo itself speaks otherwise."

The procedure that an employer wishing to terminate the services of an employee must follow, is spelled out in the Labor Code:

ART. 278. Miscellaneous provisions. —

xxx xxx xxx

However, the employer shall furnish the worker whose employment is sought to be terminated a written notice containing a statement of the causes for termination
and shall afford the latter ample opportunity to be heard and to defend himself with the assistance of his representative if he so desires in accordance with company
rules and regulations promulgated pursuant to guidelines set by the [Department] of Labor and Employment. Any decision taken by the employer shall be without
prejudice to the right of the worker to contest the validity and legality of his dismissing by filing a complaint with the regional branch of the National Labor Relations
Commission. The burden of proving that the termination was for a valid or authorized cause shall rest on the employer . The [Department] may suspend the effects of
the termination pending resolution of the case in the event of a prima facie finding by the Ministry that the termination may cause a serious labor dispute or is in
implementation of a mass lay-off.

Rule XIV, Book V of the Rules and Regulations Implementing the Labor Code reiterates the above requirements:

xxx xxx xxx

Sec. 2. Notice of dismissal. — Any employer who seeks to dismiss a worker shall furnish him a written notice stating the particular acts or omissions constituting the
grounds for his dismissal. In case of abandonment of work, the notice shall be served at the worker's last known address.

xxx xxx xxx

Sec. 5. Answer and hearing. — The worker may answer the allegations stated against him in the notice of dismissal within a reasonable period from receipt of such
notice. The employer shall afford the worker ample opportunity to be heard and to defend himself with the assistance of his representative, if he so desires.

SEC. 6. Decision to dismiss. — The employer shall immediately notify a worker in writing of a decision to dismiss him stating clearly the reasons therefor.

The twin requirements of notice and hearing constitute essential elements of due process in cases of employee dismissal: the requirement of notice is intended to inform the
employee concerned of the employer's intent to dismiss and the reason for the proposed dismissal; upon the other hand, the requirement of hearing affords the employee an
 opportunity to answer his employer's charges against him and accordingly to defend himself therefrom before dismissal is effected. Neither of these two requirements can be
dispensed with without running afoul of the due process requirement of the 1987 Constitution.

The record of this case is bereft of any indication that a hearing or other gathering was in fact held where private respondent Calangi was given a reasonable opportunity to
confront his accuser(s) and to defend against the charges made by the latter. Petitioner Corporation's "prior consultation" with the labor union with which private respondent
Calangi was affiliated, was legally insufficient. So far as the record shows, neither petitioner nor the labor union actually advised Calangi of the matters at issue. The
Memorandum of petitioner's Personnel Manager certainly offered no helpful particulars. It is important to stress that the rights of an employee whose services are sought to be
terminated to be informed beforehand of his proposed dismissal (or suspension) as well as of the reasons therefor, and to be afforded an adequate opportunity to defend
himself from the charges levelled against him, are rights personal to the employee. Those rights were not satisfied by petitioner Corporation's obtaining the consent of or
consulting with the labor union; such consultation or consent was not a substitute for actual observance of those rights of private respondent Calangi. The employee can waive
those rights, if he so chooses, but the union cannot waive them for him. That the private respondent simply 'kept silent" all the while, is not adequate to show an effective waiver
of his rights. Notice and opportunity to be heard must be accorded by an employer even though the employee does not affirmatively demand them.

Investigation of the alleged attempt to poison the drinking water of the two (2) supervisors of the private respondent was conducted by the Cainta police authorities. These
authorities interrogated and took the sworn statements of Messrs. Marin, Torrena, Meliton and Santos who, in one way or another, had been involved in such incident.
Petitioners argue that the decision to place private respondent Calangi under preventive suspension and subsequently to terminate his services was arrived at only after the
incident complained of, and Mr. Calangi, had been investigated by the company. There is, once again, nothing in the record to show that private respondent Calangi been
interrogated by the Cainta police authorities or by anyone else; indeed, it appears that practically everybody, save Calangi, was so interrogated by the police. If petitioner
Corporation did notify and investigate private respondent and did hold a hearing, petitioners have succeeded in keeping such facts off the record. It needs no documentation,
but perhaps it should be stressed, that this Court can act only on the basis of matters which have been submitted in evidence and made part of the record.

Additionally, the Court notes that the application filed by petitioner Corporation with the Ministry of Labor and Employment for clearance to suspend or terminate the services
of Mr. Calangi, cited as ground therefor "[Calangi's] frustrated plan to poison Mr. Antonio Santos and Mr. Melchor Meliton last June 5, 1983." This ground, so far as can be
gathered from the allegations of petitioners in their pleadings and from the evidence of record, both in the public respondent Commission and in this Court, is anchored mainly,
if not wholly on Mr. Torrena's sworn statement, given to the Cainta police authorities, that both he (Torrena) and private respondent had conspired with each other to inflict
physical harm upon the persons of Messrs. Meliton and Santos. A finding of private respondent's participation in the alleged criminal conspiracy cannot, however, be made to
rest solely on the unilateral declaration of Mr. Torrena himself a confirmed "co-conspirator." Such declaration must be corroborated by other competent and convincing
evidence. In. the absence of such other evidence, Mr. Torrena's "confession" implicating Mr. Calangi must be received with considerable caution. The very least that petitioner
Corporation should have done was to confront private respondent with Torrena's sworn statement; the record does not show that petitioner Corporation did so. The burden of
showing the existence of a just cause for terminating the services of private respondent Calangi lay on the petitioners. Petitioners have not discharged that burden.
It remains only to note that the criminal complaint for attempted murder against Mr. Calangi was dismissed by the Provincial Fiscal of Rizal.

Assuming he was illegally Article 280 of the Labor Code, as amended states:
dismissed, whether or not
petitioner Corporation Art. 280. -Security of Tenure. — In case of regular employment, the employer shall not terminate the services of an employee except for a just cause or when
can be ordered legally authorized by this Title. An employee who is unjustly dismissed from work shall be entitled to reinstatement without loss of seniority rights and to his backwages
computed from the time his compensation was withheld from him up to the time of his reinstatement.
(a) To reinstate private
respondent Calangi We have held in the past that both reinstatement, without loss of seniority rights, and payment of backwages are the normal consequences of a finding that an employee has
to his former been illegaly dismissed, and which remedies together make the dismissed employee whole. A finding of illegal dismissal having been correctly made in this case by public
position in the respondent Commission, private respondent is, as a matter of right, entitled to receive both types of relief made available in Article 280 of the Labor Code, as amended. It
company, with full matters not that private respondent Calangi had omitted in his complaint filed in Case No. NLRC-NCR-10-4518-83 a claim for reinstatement without loss of seniority rights for he
backwages and is entitled to such relief as the facts alleged and proved warrant.
without loss of
seniority rights and In view of the finding of illegal dismissal in this case, petitioner Corporation is liable to private respondent Calangi for payment of the latter's backwages for three (3) years,
other benefits, without qualification and deduction. Considering the circumstances of this case, however, the Court beheves that reinstatement of private respondent to his former position—
 considering that or to any other equivalent position in the company — will not serve the best interests of the parties involved. Petitioner Corporation should not be compelled to take back in its
such relief had not fold an employee who, at least in the minds of his employers, poses a significant threat to the lives and safety of company workers. Consequently, we hold that private
be sought by respondent should be given his separation pay in lieu of such reinstatement. The amount of separation pay shall be equal to private respondent's one-half (1/2) month's salary
private respondent for every year of service, to be computed from 13 December 1974 (date of first employment) until 10 June 1986 (three years after date of illegal dismissal).
in his complaint;
and
(b) To pay private
respondent an
amount for actual
damages in excess
of what has been
claimed by the
latter in his
complaint.

229. DEL MONTE PHILIPPINES, INC. VS. SALDIVAR

ISSUE RULING

230. KING OF KINGS TRANSPORT VS. MAMAC

ISSUE RULING

Whether or not petitioner Non-compliance with the Due Process Requirements

KKTI complied with the
due process requirements Due process under the Labor Code involves two aspects: first, substantive––the valid and authorized causes of termination of employment under the Labor Code; and second,
in terminating procedural––the manner of dismissal. In the present case, the CA affirmed the findings of the labor arbiter and the NLRC that the termination of employment of respondent was
respondent’s based on a "just cause." This ruling is not at issue in this case. The question to be determined is whether the procedural requirements were complied with.
employment.
Art. 277 of the Labor Code provides the manner of termination of employment, thus:

Art. 277. Miscellaneous Provisions.––x x x

(b) Subject to the constitutional right of workers to security of tenure and their right to be protected against dismissal except for a just and authorized cause without
prejudice to the requirement of notice under Article 283 of this Code, the employer shall furnish the worker whose employment is sought to be terminated a written
notice containing a statement of the causes for termination and shall afford the latter ample opportunity to be heard and to defend himself with the assistance of his
representative if he so desires in accordance with company rules and regulations promulgated pursuant to guidelines set by the Department of Labor and Employment.
Any decision taken by the employer shall be without prejudice to the right of the worker to contest the validity or legality of his dismissal by filing a complaint with the
regional branch of the National Labor Relations Commission. The burden of proving that the termination was for a valid or authorized cause shall rest on the employer.

Accordingly, the implementing rule of the aforesaid provision states:

SEC. 2. Standards of due process; requirements of notice.––In all cases of termination of employment, the following standards of due process shall be substantially
observed:
 I. For termination of employment based on just causes as defined in Article 282 of the Code:
a. A written notice served on the employee specifying the ground or grounds for termination, and giving said employee reasonable opportunity within
which to explain his side.
b. A hearing or conference during which the employee concerned, with the assistance of counsel if he so desires is given opportunity to respond to
the charge, present his evidence, or rebut the evidence presented against him.
c. A written notice of termination served on the employee, indicating that upon due consideration of all the circumstances, grounds have been
established to justify his termination.
In case of termination, the foregoing notices shall be served on the employee’s last known address.
To clarify, the following should be considered in terminating the services of employees:

(1) The first written notice to be served on the employees should contain the specific causes or grounds for termination against them, and a directive that the employees
are given the opportunity to submit their written explanation within a reasonable period. "Reasonable opportunity" under the Omnibus Rules means every kind of
assistance that management must accord to the employees to enable them to prepare adequately for their defense. This should be construed as a period of at least
five (5) calendar days from receipt of the notice to give the employees an opportunity to study the accusation against them, consult a union official or lawyer,
gather data and evidence, and decide on the defenses they will raise against the complaint. Moreover, in order to enable the employees to intelligently prepare their
explanation and defenses, the notice should contain a detailed narration of the facts and circumstances that will serve as basis for the charge against the employees. A
general description of the charge will not suffice. Lastly, the notice should specifically mention which company rules, if any, are violated and/or which among the
grounds under Art. 282 is being charged against the employees.
(2) After serving the first notice, the employers should schedule and conduct a hearing or conference wherein the employees will be given the opportunity to: (1) explain
and clarify their defenses to the charge against them; (2) present evidence in support of their defenses; and (3) rebut the evidence presented against them by the
management. During the hearing or conference, the employees are given the chance to defend themselves personally, with the assistance of a representative or
counsel of their choice. Moreover, this conference or hearing could be used by the parties as an opportunity to come to an amicable settlement.
(3) After determining that termination of employment is justified, the employers shall serve the employees a written notice of termination indicating that: (1) all
circumstances involving the charge against the employees have been considered; and (2) grounds have been established to justify the severance of their employment.

In the instant case, KKTI admits that it had failed to provide respondent with a "charge sheet." However, it maintains that it had substantially complied with the rules, claiming
that "respondent would not have issued a written explanation had he not been informed of the charges against him."
We are not convinced.

First, respondent was not issued a written notice charging him of committing an infraction. The law is clear on the matter. A verbal appraisal of the charges against an
employee does not comply with the first notice requirement. In Pepsi Cola Bottling Co. v. NLRC, the Court held that consultations or conferences are not a substitute for the
actual observance of notice and hearing. Also, in Loadstar Shipping Co., Inc. v. Mesano, the Court, sanctioning the employer for disregarding the due process requirements, held
that the employee’s written explanation did not excuse the fact that there was a complete absence of the first notice.

Second, even assuming that petitioner KKTI was able to furnish respondent an Irregularity Report notifying him of his offense, such would not comply with the requirements of
the law. We observe from the irregularity reports against respondent for his other offenses that such contained merely a general description of the charges against him. The
reports did not even state a company rule or policy that the employee had allegedly violated. Likewise, there is no mention of any of the grounds for termination of employment
under Art. 282 of the Labor Code. Thus, KKTI’s "standard" charge sheet is not sufficient notice to the employee.

Third, no hearing was conducted. Regardless of respondent’s written explanation, a hearing was still necessary in order for him to clarify and present evidence in support of his
defense. Moreover, respondent made the letter merely to explain the circumstances relating to the irregularity in his October 28, 2001 Conductor’s Trip Report. He was unaware
that a dismissal proceeding was already being effected. Thus, he was surprised to receive the November 26, 2001 termination letter indicating as grounds, not only his October
28, 2001 infraction, but also his previous infractions.

Sanction for Non-compliance with Due Process Requirements

 The petitioners failed to comply with the due process requirements, the CA awarded full backwages in favor of respondent in accordance with the doctrine in Serrano v. NLRC.
However, the doctrine in Serrano had already been abandoned in Agabon v. NLRC by ruling that if the dismissal is done without due process, the employer should indemnify
the employee with nominal damages.

4.2. AGABON DOCTRINE

231. WENPHIL VS. NLRC

ISSUE RULING

232. SERRANO VS. NLRC

ISSUE RULING

233. AGABON VS. NLRC

ISSUE RULING

234. JAKA FOOD PROCESSING CORPORATION VS. PACOT

ISSUE RULING